Oracle/Google Case Shows Just How Totally Pointless It Is To Have Patents On Software

from the it's-now-how-people-code dept

For starters, software often does not require the type of heavy investment that should result in a 20-year monopoly. Instead of expensive laboratories or years of testing for FDA approval, for example, you often just need a coder and a computer. Even complex programs don’t require 20 years of exclusivity to recoup their investment. Software patents are often not even necessary for successful businesses: Facebook and, yes, Google — never relied on software patents to grow their early businesses.

Software patents are also notoriously vague and difficult to understand, making it impossible for small inventors to navigate the system without expensive legal help. And that brings us to the most dangerous aspect of software patents: litigation.

It turns out that software patents are nearly five times more likely to be the subject of litigation as other patents. In fact, lawsuits surrounding software patents have more than tripled since 1999, and they have become part of the price of doing business in America. Take Spotify. After realizing much success in Europe, Spotify launched its U.S. product in July, and just weeks later it found itself facing a patent suit.

Of course, tons of software developers recognize this implicitly. I know an awful lot of software developers in Silicon Valley. I can't think of a single one who thinks patents are a good thing or even remotely useful (and this includes many developers who have patents). In development circles, it seems that nearly everyone thinks patents are a waste of time and money. And that's because software doesn't work the way that the patent system envisions.

Perhaps most troubling, the patent system fails to recognize how people create and use technology. Software is fundamentally situated as a building-block technology. You write some code, and then I improve upon it — something the open source community has figured out. Google’s use of Java in its Android OS also demonstrates how innovators create, by making its own product and and incorporating some elements of the Java language (which, incidentally, Java’s creators have a history of supporting). And when those two come together, it results in an incredibly popular product, here the Android OS.

It's the difference between an idea and actually bringing that idea to market. That difference is always ignored or underestimated by patent lawyers -- but developers know the difference. The patent system wasn't designed by software developers, though. And it shows.

Reader Comments

You wouldn't patent adding would you?

All software, at its most basic function within the CPU, is just adding numbers, shifting the result to memory, and then adding the next set of numbers. So why would we allow someone to patent adding numbers?

Re: Re: You wouldn't patent adding would you?

Likewise, all digitized content, be it text, music, or video is represented by nothing more than a number. Why should we grant forever-minus-a-day monopoly rights on numbers?

The copyright itself is not on the binary encoding of the content, but of the content itself.

I'm a professional software developer, and like those that Mike knows of, I feel that software patents are abhorrent. Software copyright, on the other hand, makes perfect sense.

Code is a lot like a painting. There are many ways to represent the same thing, and many of the representations will share a lot of the same form and substance. As long as one was not directly copied from another, there should be no infringement on copyright.

Patents, on the other hand, make as much sense in either world. It would be absurd to give someone exclusive rights to make impressionist paintings of the Eiffel Tower. The same should apply to a software patent for "Distributed hypermedia method for automatically invoking external application providing interaction and display of embedded objects within a hypermedia document" (i.e. displaying plug-in content in a web browser).

Re: Re: Peppe Le Pew

Not just a single idea, ANY IDEA, regardless of whether or not it works. So what if the idea never comes to fruition. The person who thought up the idea is the only one who could think of that particular thing. The world would result to chaos if more than one person ever thought the same idea as some one else.

My guess is the OP had something "stolen" from her/him, or some one was able to make the idea actually work and the OP was not.

Anyone can think of an idea, that doesn't mean patents should be handed out to every one who has an "unique" idea. Of course if we did that, then all patent owners would need to pay a licence fee to Krugi The First Human. With out Krugi, there would be no people what so ever.
On the the other hand since religions claim that people were made by a deity, then all the ideas a person has came from that deity, so nothing is patent-able at that point.

Which leads to an interesting question, if either of the above is true, would not every thing be in the public domain? The city of UR(first known human civilization) was six thousand years ago. Even the most extensive patent laws, copyright laws and trade mark laws, do not extend anything to a time frame of six millennia(sp?).

Remember that when some one tries to claim ownership to an idea. An idea is only owned by an individual as long it is kept from everyone and no one else thinks of it. The moment either condition is broken, the idea is public. People need to spend more time creating and less time holding onto a single idea.

Re: Re: Re: Peppe Le Pew

"My guess is the OP had something "stolen" from her/him, or some one was able to make the idea actually work and the OP was not. "

You are worse than guessing then Marcus, and he is about 1 in a million shot.

Seriously, patents do not require a "product to market" to be patent - they need the idea and the appropriate documents to show how it works and how it is unique. There isn't much more than that to it.

There is no requirement to bring something to market and start selling it before you can get a patent. Some do, but that is NOT the requirement.

Re: Re: Re: Re: Peppe Le Pew

Correct, they are supposed to have more than an idea. They are supposed to patent an implementation .. so that people some years later can build on it.

Sadly, this never happens in most cases, especially software, since the implementation would be algorithms, which are not supposed to be patentable but would facilitate reproducing the effects of that software later, after expiration. Oh .. and the actual algorithms are never disclosed.

Please identify one software patent which should prevent another implementation of the idea by someone else.

Please identify one software patent with enough non public information for a company to replicate the tech.

Please identify any case where someone was able to use a software patent in relevant software after the patent expired.

Re: Re: Re: Re: Peppe Le Pew

Well, perhaps they should require the product be nearing production before granting the patent. That way, it reduces patent trolling. Moreover, therer should perhaps be a time limit on actual production - say, 2 years, with no litigation permissible excepting on actual products.

Re: Anonymous Coward

Re:

Why do you have so much trouble distinguishing between statements about the law actually says and statements about whether or not the law is good/effective? We make both on this site quite frequently, and it's pretty easy to tell which is which. And yet, when we look at things within the confines of the law, you freak out about us making excuses and seeking loopholes - then, when we look at the law as a whole and comment on it, you freak out about us not playing by the rules.

It's a brilliant tactic on your part, actually. Instead of having to come up with counterarguments, you go fight an imaginary battle on a whole different playing field, against an army of straw men. Or rather, it would be a brilliant tactic, except you somehow still manage to always lose...

Duh

LOL, so, first off, let's see even one example. No link, didn't happen. (One nice thing about the site is it's got archives so if you really have some examples, please link and explain how a concept Mike argues against is a strawman. Hell, cite an example like "You know that article where Mike argued against [X] but [X] wasn't really a real thing...".)

Second, you only accuse Mike of something that you apparently think sucks (without bothering to mention even one of these supposedly plentiful instances) while at the same time admitting that it is *your* modus operandi. Even if it were true that Mike constantly attacks strawmen (which, as far as I can tell would be completely unnecessary being as it's surreal how far the powers that be have gone, and continue to go, in their efforts) you somehow think that it would justify your knowingly using fallacious reasoning in an attempt to trick people into believing your points?

You, Mr. or Ms. Coward, are... well, let's face it. A total douche really. (Not really a fastergemspiderbugdingleg baststarglobtwinkle but I really just wanted to practice my Canadian swearing, eh?)

"Facebook and, yes, Google — never relied on software patents to grow their early businesses."

Now i don't actually know about facebook, but i haven't seen google anywhere assert patent infringement, either aggressively to go after someone, nor in a counterclaim, which is where they would most likely appear.

I think google are clearly demonstrating that they are not needed, even the ones oracle asserted at the start of this, 95% of them have been binned.

software patents, a problem!

It's not even the difference between an idea and bringing it to market, it's just that there are multiple applications for the same "idea". Although I wouldn't call something like an algorithm an idea, it's more like a plan for reaching a goal. It would be many ideas brought together and organized, some from here, some from there, some you come up with, some your coworker comes up with, some you remember from school or from other software you use or from physical analogies... Whatever it takes to get the job done.

If software patents were more thouroughly enforced they would destroy the software industry. As it is, you just build and take the chance someone doesn't sue you over what nails you use.

Re: Re:

Well yeah, building software means infringings tons of patents you don't know about and hope to fly under the radar, unless you are microsoft or google or whatever in which case you can't fly under the radar and you have to stop building stuff and play some stupid cold war patent stockpiling game instead. Thats why it would destroy the industry if they were more thoroughly enforced.

There's been some talk even where I work about open source software. It offers major advantages commercial packages don't.

First off, you can analyze every speck of code. Big plus.

The level of customization is only limited by the programmers you are willing to hire.

It's uh.... mostly Free, although they are willing and would prefer to pay for 'supported' packages as well.

Perhaps the only real downside to any open source is when they are more 'collaborative' technologies. Such as word DOCS, and also perhaps the 'big', in terms of widespread use, software packages that would be far too much to maintain, like PDF readers, Email clients, etc.

But for the existing specialized process control uses, it shines. Then the 'middleware' starts to look good as well. Instead of paying huge piles of cash for something like Web applications, custom apps typically require a small team to code and manage - really good there too.

Of course, some open source projects are becoming pretty predominant over others - like Open Office for instance, as similar apps become more commonplace the whole 'collaborative' use becomes easier too.

Either way, people will be happy to pay a lesser upfront cost and little bits here and there for updates or support.

But that's a good synopsis of the whole situation - if ALL code was 100% patented, technology would be no where near where it is today. Every company would be re-writing mouse and I/O routines for all software - like in the VAX/Mainframe days, and overall software companies would net a lot less, just because computers wouldn't be as useful.

Re:

Yeah, but unfortunately the opensource guys usually don't play the patent stockpiling game and are starting to get big enough that they can't fly under the radar anymore. I'm sure it won't be long before they manage to get it declared illegal and are suing the grandmothers of people who use opensource software for gajillions.

Re: Re: Re:

They're usually involved because common sense *was* thrown out of the window, shot, trampled on, and posted to Timbuktu. Add to that masses of greed and fear and you have the perfect mix for the crippling of an industry.

For starters, software often does not require the type of heavy investment that should result in a 20-year monopoly. Instead of expensive laboratories or years of testing for FDA approval, for example, you often just need a coder and a computer. Even complex programs don’t require 20 years of exclusivity to recoup their investment.\

You sir, are mistaken. I live in Cupertino. A giant two story building was full of nothing but software engineers working on Java for Sun that is until they outgrew it and moved somewhere else and got more space. They were only in my neighborhood for four or five years. There must have been a couple of hundred of them so just for the period while they were here that's 800 person years of effort and expense.

The local merchants were sorry to see them go but then Apple took off and took over the building probably filled it with iOS engineer or something like that.

Not everything is trivial. Some things take huge investments over many years.

Re: Re: Re: A giant two story building was full of nothing but software engineers working on Java for Sun...

Re: Re: A giant two story building was full of nothing but software engineers working on Java for Sun...

Well, they did produce a programing language with lots of useful aspects that were not all available in one language at the time, specs and reference implementations for a large set of commonly used standards and standard functionality,for a large set of commonly needed functionality.

Re:

A couple of hundred engineers in a giant building. Giant buildings typical house many more than a couple hundred workers. Fail #1

Nothing but engineers? Seems unlikely. Fail #2

How many years into that effort was java 1.0 released? How many engineers involved in that initial effort? I'm guessing not more than 2 years and less than 10 engineers. You do know that once you release it, you can not patent it, don't you? Fail #3

Given that 15ish years ago, UC Berkley had a course where you had to write a complete java compiler as a semester project, my best guess would be 3 engineers. Fail #4

The rest was building on the base, and you realize that not every line of code someone writes is patentable, right? That 800 man years of patentable code sounds pretty ridiculous. Fail #5

Just because you live in Cupertino does not mean you know anything about software. You may well, but your stated credentials are that you live in Cupertino. Fail #6

Not trivial != patentable. There is no sweat of the brow argument in US patent law, and I hope there never is one. There is no non-trivial rule in US patent law. Given how close the concepts of Java were to C++, where is the uniqueness. There were concepts that were in java that were not in C++, but those were widely known in the industry and the published literature. Fail #7

Huge investment required != patentable (see mining). Fail #8

Oh, and software is entirely algorithms, which are not supposed to be patentable, despite what the technology ignorant SCOTUS has ruled. Since the SCOTUS ruled, I won't give you a fail on this, but it is a complete fail on the court system to not get this.

Wow: Quite a tally. 8 fails for you, and one (at least) for the SCOTUS.

I'm still waiting for someone to propose patents on literary devices. If you can patent things like algorithms and APIs, you should be able to patent things like "en media res" and metaphor. Lets take this ad absurdum: "Abstract: A mechanism for describing a concept or object by comparing it to another concept or object without using comparators such as 'like' or 'as'... on a mobile device." Yup, seems entirely doable.

Issue is not money

The issue has always been about control. Google didnt like the JCP and wanted independence.

Is Java served by Google's fragmentation? What about the future of standards (open or commercial) if they cannot be protected by their community. I am not just speaking of Oracle and Java Community Process but am referring to IETF, IEEE, OASIS and any SDO.

If standards cannot be enforced then what value are they? How is the public served when nothing interoperates or works?

Re: Issue is not money

Yeah, I mean, let's take this further: where would we be if the programming languages and libraries themselves, like for C and C++, weren't protected by patents and actively protected from fragmentation by Microsoft or someone like them coming along and adding their own functions that weren't compatible. I mean, c'mon, imagine how quickly the compilers wouldn't have worked or interoperated without protection from that.

Wait, what? You mean they weren't protected by patents and actively protected? Microsoft did try their own things like their own methods for TCP and such? Wait, and that failed and MS eventually ended up putting the standard functionality in because customers demanded compilers that actually worked with the open specifications? And where that wasn't possible people simply used compiler pragmas to work around the problems? And the market itself protected those standards without patents to drive it?

Re: Re: Re: Re: Issue is not money

Well, not strictly Java, but J2ME - do you have all day ? I worked with J2ME in the early days of mobile gaming, and I can tell you that we had to produce at least 20 versions of a game to run across all handsets. To be fair, this was generally due to manufacturers JVM implementations.

Re: Re: Re: Re: Issue is not money

Wait, but, assembly language is different on different processors right? How could I have been so wrong? Clearly this was a failure: assembly should have been patented standardized and every manufacturer forced to use the *same instruction set and registers*! Imagine how much better off we'd have been if someone had stepped in and made everyone pay to build upon the very *idea* of a processor!

Re: Re: Re: Re: Issue is not money

Re: Re: Re: Issue is not money

Well, who knows? Time and ingenuity and demand (or the copyright and patent trials) will take care of it just as time took care of MS putting in standard sockets.

I just don't get it: supposedly a big part of the argument *for* intellectual property restrictions is a utilitarian one: it's supposed to make everyone better off to have them in the first place. Yet, how can the respective companies spending outrageous sums of money on the Oracle vs. Google trial be more beneficial use of resources than, say, the new research and development that would be required to stay ahead of the competition in the absence of these laws?

Now multiply that by the multitude of other suits and wasted time gathering 'defensive' patents, or the costs to 'the good of the whole' of the injunctions taking functionality that people want off the market? The only possible reason I see (I'm especially focused on software in this particular post) is that one might believe that there is a moral right to these restrictions and therefore the immense costs to 'the greater good' are worth it.

And this is why most software developers can see that, at the very least, the system is broken, and given that copyright as it stands (in the U.S.) actually causes far more damage than it does good, the whole 'moral right' argument holds little water unless we're talking a severe correct to the current intellectual property restriction laws that actually protects whatever 'moral right' there is as best as can be protected without costing us what otherwise would have been multiple tens or hundreds of thousands or more man-years of progress every year.

We understand that the amount of effort in coming up with these supposedly patentable ideas involve basically a week or two sitting down and brainstorming with a team, and we understand the impossibility of building new things without building upon what came before.

And it happens in a flash because it's software, and we can do a plan->design->build cycle in a day or a week or a month at a very small marginal cost. It's not like the processes that took many years and tons of money and effort just to bring them to fruition. It's stuff we do day in and day out, and why should we clamp down on what would be an even more mind-bogglingly fast pace just to reward people for stuff they did in the past--when the supposed point of such laws is to advance the good of the whole not to line the pockets of the few at the expense of the whole?

Take this for what it is: one very common take on how things work by software developers; I realize I do not speak for everyone and that there's much room for debate, but I just want to get across how being actually in the thick of the software development process can bring about a certain viewpoint.

Re: Issue is not money

The issue is about Oracle's desired control, not Java itself. Can you cite how Google somehow disregarded the JCP, rather than the JCP disregarding Google? Remember, the C in JCP stands for Community. Oracle is not trying to enforce standards or interoperability.

Can you cite examples of Android's implementation of the Java standard APIs whose behavior deviate from the Java spec?

Standards are about firstly inputs and expected outputs, and secondly, behavior between inputs and outputs.

If the standards call different implementations of the standards to be divergent, then there is no such thing as an interoperable standard. If you work for Microsoft or Oracle, you like that idea.

There is no fragmentation in this issue. Write once, run many still lives.

If Android's implementation of both inputs / outputs, and behavior differed from the spec it would have failed in it's goal. Please cite examples of this difference.

Java was always about specifying the language and the behavior, with lots of validation suites to make sure implementations adhere to the spec. There are more than one implementation of Java, so one more shouldn't be a problem.

another biased article

The Constitution says “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. Therefore, if an invention is useful and promotes science, it should be patentable. It’s that simple.

They sell blog filler and "insights" to major corporations including MS, HP, IBM etc. who just happen to be some of the world’s most frequent patent suit defendants. Obviously, he has failed to report his conflicts as any reputable reporter would. But then Masnick and his monkeys are not reporters. They are patent system saboteurs receiving funding from huge corporate infringers. They cannot be trusted and have no credibility. All they know about patents is they don’t have any.

Re: another biased article

Your subject is "another biased article" and yet the body of your comment contains nothing addressing the article, biased or not. I guess you randomly post attacks without any logic behind what post it appears in.

Goyem finally catching on!

Linux like the free Ubuntu Operating System found on this web, and fully Open Source, is far superior to the most popular and expensive system.
Rube's, you finally suspect that you have been robbed! Poor dumb bastards - Russian, Chinese, Vietnamese,Indians, major populations, all seek "Open Source" and the free computer sciences education they offer, Dell ship with Ubuntu installed in China!!! Meanwhile, Yankee Doodle Dandy is fer $micro$oft "Pabulum Programs" and learn nothing! guaranteeing 'repeat customers"
There is a sucker born every minute - American adage! Proves true!

no one size

I have said for quite a while that the one-size-fits-all approach to patent grants no longer works. Inevitably the system will have to make changes, and software patents may be the catalyst for that. Instead of throwing out software patents altogether, though, I think it's time to start discussing a multi-tiered patent system that grants more flexible, shorter-term (and less expensive) patents for software than for, say, pharmaceuticals, which do need 20 years to recoup on R&D. Flexibility seems to be the new solution.

Ideas and products

Interesting piece Mike

I think the gulf between ideas and finished products is not just marked in the field of software patents - but is a problem across many industries. 'Creative capital' can be seized and re-used in everything from screenwriting, various design disciplines and many other fields where mere 'ideas' are not worth the paper they're written on. I guess there's just more money at stake with software patents?